Law Commons^™

The Trade Act Of 1974: Section 337 Of The Tariff Act And The Public Interest, John F. Mcdermid

Vanderbilt Journal of Transnational Law

The Trade Act of 1974 amended section 337 of the Tariff Act of 1930, and thereby substantially modified the procedures for the conduct of United States International Trade Commission investigations concerning unfair practices in import trade. The Trade Act changed the role of the ITC from that of a relatively passive adviser on potential courses of action to the President to that of final judge, subject to Presidential override and judicial review, of whether a violation of the Act has occurred. Additionally, the Trade Act provides that in the event that the violation is found, the ITC may now issue …

International Lending: The Case For Developing Nations, Harold G. Maier

Vanderbilt Journal of Transnational Law

As is peculiarly appropriate for any conference dealing with a rapidly developing and constantly changing area of international economic activity, both the speakers and the participants at this meeting raised more questions than were answered. A principal theme, illustrated by the papers reproduced here, was the need for careful consideration of the problem--legal and commercial-- involved in international lending on the basis of specific information concerning its effect, its promise and the needs involved. Generalizations concerning activities in developing countries are increasingly ineffective as guides to government or business policy or academic inquiry. Recent events in the Middle East confirm …

Changes In The Investment Climate In Developing Nations, Jack Baranson

Vanderbilt Journal of Transnational Law

The changes of the 1960's point to two important trends in the 1970's--the continuing erosion of the foreign investment base and an expanding drive toward technological self-reliance. These tendencies have important implications for future operational modes of multinational corporations and for further adjustments in the world economy. First, developing countries will continue their efforts to eliminate foreign ownership and control of their industries and their preference for licensing arrangements and management services will continue to erode the foreign investment base. Secondly, developing countries will not be satisfied with the transfer of manufacturing techniques and related management systems. They will want …

Legal Protection Of Loans To Developing Country Borrowers, Lajos Schmidt

Vanderbilt Journal of Transnational Law

At the Bretton Woods Conference in July 1944, in introducing the proposal for what is today the World Bank, John Maynard Keynes predicted: "In the dangerous and precarious days which lie ahead, the risks of the lender will be inevitably large and most difficult to calculate. The risk premium reckoned on strict commercial principles may be beyond the capacity of an impoverished borrower to meet, and may itself contribute to the risks of ultimate default." Three decades later this problem of the gap between the developed-country lender's required risk premium and the developing-country borrower's ability to generate an investment return …

The Role Of International Lending In Developing Economies, Orville L. Freeman

Vanderbilt Journal of Transnational Law

A consideration of International Lending: The Case of Developing Nations is timely not only because of the forces that are propelling the Third World into a position of increasing strategic and political importance but also as a recognition of the importance of credit to development and of the fact that loans and self-help, rather than massive infusions of outside assistance, are the key to real development. It is not this writer's intention to discuss different forms of credit or the many practical, technical and legal hurdles to mobilizing and delivering loans to the Third World on a fair basis to …

Multiple Jurisdiction--Will It Save Or Destroy The Oceans? Political Analysis Of A Legal Problem, Charles F. Doran

Vanderbilt Journal of Transnational Law

The recent trend of claims to the ocean and its riches has led far beyond the liberal twelve nautical mile territorial sea limit that the United States is prepared to recognize. In particular, two documents, the Declaration of Santo Domingo, proposing a "patrimonial sea" of 200 miles, and the draft articles on an "exclusive economic zone" of 200 miles submitted by Kenya, are likely to find much favor at the substantive session of the Third Law of the Sea Conference to be held at Caracas in the summer of 1974. Emerging from conflicts of interest, which have gradually eroded the …

Recent Decisions, Stanley D. Miller, G. Cranwell Montgomery, Douglas I. Friedman

Vanderbilt Journal of Transnational Law

Recent Decisions

Admiralty--Maritime Wrongful Death Action--A Maritime Wrongful Death Action for Unseaworthiness Alleging Loss of Support, Services, Society and Funeral Expenses is not Barred by Decedent's Recovery of Damages for Personal Injuries during His Lifetime

Stanley D. Miller

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Constitutional Law--Fourth Amendment Search and Seizure--Without Consent, Warrant or Probable Cause, A Roving Patrol Search of a Vehicle Twenty-Five Miles from Border is an Unreasonable Search and Seizure within Meaning of Fourth Amendment

G. Cranwell Montgomery

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Jurisdiction--Securities Exchange Act of 1934--Section 10(b) applies to Fraudulent Transaction in Unlisted Foreign Securities when the Only Conduct within the United States is the …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Case Digest

1. ACT OF STATE ACT OF STATE DOCTRINE APPLIES TO INFORMAL ACTIONS OF FOREIGN GOVERNMENTS IF THE GOVERNMENTAL AGENT ACTS WITHIN THE SCOPE OF HIS AUTHORITY

2. ADMIRALTY SIGNIFICANT--RELATIONSHIP-TO-MARITIME-ACTIVITY TEST USED TO DETERMINE ADMIRALTY TORT JURISDICTION

3. ALIEN'S RIGHTS REGULATIONS EXCLUDING RESIDENT ALIENS FROM EMPLOYMENT IN FEDERAL COMPETITIVE CIVIL SERVICE VIOLATE DUE PROCESS CLAUSE OF FIFTH AMENDMENT

4. AVIATION MENTAL DISTRESS ATTACHES TO AN AIR CARRIER'S STRICT LIABILITY FOR BODILY INJURY UNDER THE WARSAW CONVENTION

5. IMMIGRATION AND NATURALIZATION CONGRESS MAY GRANT CITIZENSHIP TO FOREIGN-BORN CHILDREN OF CITIZEN FATHERS, WHILE DENYING SAME TO OFFSPRING OF CITIZEN MOTHERS

6. …

Establishing An International Commercial Arbitration Council: A Preliminary Proposal, Martin Domke

Vanderbilt Journal of Transnational Law

There has been, in recent years, a substantial growth of international trade. This phenomenon has not confined itself to the more economically developed nations of the world. The developing countries, with different economic and social structures, have also participated in the increased trade activity. Moreover, it can be expected that this trend will continue in the coming years, steadily forging more and more links between countries in all parts of the world.

Growth of trade activity is necessarily accompanied by a corresponding increase in the number of disputes between parties to commercial agreements. The business community is in general accord …

The Bases And Range Of Federal Common Law In Private International Matters, Harold G. Maier

Vanderbilt Journal of Transnational Law

During the past decade, there has been increasing attention on the part of legal scholars to the need for a clear statement outlining the divisions of state and federal power in this difficult area. In two important cases, the Supreme Court indicated renewed judicial interest in the problem. To date, however, the federal courts have not succeeded in establishing a uniform and workable guide by which the validity of state action may be judged in the absence of definitive federal policy. This deficiency has posed difficulties for state legislatures in arriving at law-making decisions and for the courts in testing …

Editor's Foreword, Charles G. Burr Editor-In-Chief

Vanderbilt Journal of Transnational Law

The Vanderbilt Journal of Transnational Law is a new undertaking at Vanderbilt Law School. The Journal is an outgrowth of the predecessor publication, The Vanderbilt International, which was established in 1967 as a bulletin of the Vanderbilt International Law Society. A number of factors, including increased student enrollment at the Law School and a growing awareness of global activities and problems, have facilitated the Journal's evolution into its present, expanded format. It is indeed appropriate that the lead article of the new publication should be authored by Judge Philip C. Jessup, who has long been the foremost advocate in the …

The Regulation Of Transnational Sports Competition: Down From Mount Olympus, James A.R. Nafziger

Vanderbilt Journal of Transnational Law

This article seeks first to identify the behavioral and organizational characteristics, and to clarify the shared goals of transnational sports competition. Against this background, the article will examine the formal characteristics of decision-making within the Olympic Movement, whose quadrennial Games provide the most highly developed for a for these events. Finally, four case studies are used to evaluate the Olympic organization's performance--that is, the efficacy of relevant policies, rules and procedures that are available to decision-makers to achieve the shared goals of the organization. Several modest proposals are advanced. Aside from these, however, a comprehensive prescription of alternative policies, rules …

Securities Regulation In The United Kingdom: A Comparison With United States Practice, Robert L. Knauss

Vanderbilt Journal of Transnational Law

The most important securities market outside the United States is that of the United Kingdom. In both countries, the securities markets play a similar role and provide a viable method for the formation of capital. There are, however, a number of fundamental as well as practical differences in the methods by which the two countries have chosen to regulate their securities markets. This article will examine the current method and extent of securities regulation in the United Kingdom. In order to highlight certain aspects of the regulatory pattern and to make the system more comprehensible to American attorneys, this inquiry …

Policy Issues In Primary Industries, Zuhayr Mikdashi

Vanderbilt Journal of Transnational Law

Business and government have espoused a variety of policies to exploit market forces to their advantage. This article explores the policies involved with important issues affecting relationships among protagonists in primary industries and offers some suggestions. The first section deals with "freeing" the supply of key information not normally accessible to less developed countries(LDC's). Sections two and three relate to two aspects of international trade: easing hardships resulting from interruptions in re-source flows; and redistributing gain from resource industries among trading countries. The final two sections of the article deal with development financing, and with the accommodation of foreign investments …

The United States In Pending World Trade Negotiations, Theodore R. Gates, J. Dapray Muir

Vanderbilt Journal of Transnational Law

The United States emerged from World War II as the only major trading nation with a strong economic and financial position. The post-War international trading structure, embodied in the General Agreement on Tariffs and Trade (GATT) and the International Monetary Fund (IMF) frameworks, was established with the United States in the position of a dominant, largely self--sufficient producer of many and superior goods. The succeeding three decades, however, have witnessed radical changes in that circumstance. No longer is a "fortress America" economically feasible. The United States is no longer self-sufficient in a number of raw materials on which it depends; …

Recent Treaties And Statutes, Charles H. Manning, Annette Adams, Alan D. Mazer

Vanderbilt Journal of Transnational Law

Foreign Investment--The Canadian Foreign Investment Review Act--An Act to Screen Foreign Investment in Canada--Allowing those Investments of Significant Benefit to Canada

Charles H. Manning

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International Economics--Caribbean Common Market--Caribbean Countries Band together to Promote Regional Cooperation and Achieve Economic Integration

Annette Adams

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Panama Canal Treaty--Statement of Principles provides Guidelines for Negotiation of New Panama Canal Treaty in Complete Abrogation of 1903 Treaty as Amended--Joint Statement of the Honorable Henry A. Kissinger, Secretary of State of the United States of America, and His Excellency Juan Antonio Tack, Minister of Foreign Affairs of the Republic of Panama, on February 7, 1974 …

The Protection Of Art In Transnational Law, Alan Marchisotto

Vanderbilt Journal of Transnational Law

Over the years, governments have been faced with preservation problems posed by war, theft and uncontrolled access to cultural sites. In addition, they have become increasingly sensitive to the unrestricted exodus of culturally important works of art. Their attempts to deal with these problems have raised serious questions about the nature of state responsibility in this field, about the criteria employed to define a particular cultural heritage and to classify certain work as falling within it, and about the right of nations to claim exclusive control of designed works of art. The difficulty in answering these questions has been compounded …

French Nuclear Testing And Article 41--Another Blow To The Authority Of The Court?, Jerome B. Elkind

Vanderbilt Journal of Transnational Law

On the 23rd of July 1973, at 9:00 a.m. New Zealand time, members of the crew of the New Zealand vessel, Otago, witnessed a nuclear explosion on one of the islands in the Mururoa atoll. The blast, a small one in the low kiloton range, marked the beginning of the eighth series of French atmospheric nuclear tests, which have been conducted in the Pacific since July 1966 when France moved its nuclear test site from the Reggane Firing Ground in the Sahara. Since that time the French nuclear tests have been a perennial sore spot in the diplomatic relations between …

Recent Developments, Craig G. Christensen

Vanderbilt Journal of Transnational Law

The debacle of the Nationalist regime in China and the subsequent United States trade embargo on the People's Republic of China (China) from 1949 to 1970, resulted in the deletion or obsolescence of United States federal income tax incentives previously applicable to Sino-American trade. The benefits of these tax provisions were transferred, with the Nationalist government, to the Taiwan-based Republic of China (Taiwan). Moreover, foreign trade tax measures enacted during the economic stalemate were largely inapplicable to China, but enhanced existing trade with Taiwan and Hong Kong. Initial United States responses to the current detente with China portend increasingly significant …

The Evolution Of Concession Agreements In Underdeveloped Countries And The United States National Interest, Theodore H. Moran

Vanderbilt Journal of Transnational Law

Large natural resource projects in underdeveloped countries provide great benefits to United States investors, to host countries and to the United States itself. Yet concession agreements to exploit natural resources are notoriously controversial and notoriously unstable. This article will examine the United States national interest in guaranteeing equity investments in foreign natural resource development and will argue that concession agreements in large natural resource projects in the developing world go through a highly predictable evolution, reflecting changes in the relative bargaining positions of the foreign investors and the host governments. Initial agreements reflect the foreign company's quasi-monopolistic control over the …

Recent Developments, Charles A. Schliebs

Vanderbilt Journal of Transnational Law

The traditional American "locality" test' for admiralty tort (subject-matter) jurisdiction, which posits the occurrence of the tort on navigable waters as the controlling factor, has suffered mounting criticism through the years because it has resulted in unwarranted expansion of admiralty jurisdiction. Numerous federal courts consequently have suggested the need of an additional requirement that the claim involve some sort of traditional maritime activity to invoke admiralty jurisdiction. The Supreme Court, however, used only the locality test prior to deciding Executive Jet Aviation, Inc. v. City of Cleveland, in which the Court found both the historical requirement of locality and a …

The Statutory Proposal To Regulate The Jurisdictional Immunities Of Foreign States, R. Lee Bennett

Vanderbilt Journal of Transnational Law

In January 1973, the Departments of State and Justice submitted to Congress a draft bill that defines the jurisdictional immunities of foreign states in United States courts. This draft legislation represents a major shift in the State Department's posture on the substantive and procedural issues of sovereign immunity that will undoubtedly stir considerable controversy within the international bar during its examination by Congress.

A survey of current United States practice regarding the immunity of foreign states reveals that reform is mandatory. At present the determination whether a foreign state is entitled to jurisdictional immunity is made by the courts, whose …

Recent Treaties And Statutes, Donald C. Van Pelt, Jr., George H. Carnall Ii

Vanderbilt Journal of Transnational Law

The Single Convention on Narcotic Drugs, 1961, constituted a major step toward international acceptance of responsibility for the control of licit and illicit drug traffic. The Single Convention achieved a unified codification4 of existing multilateral treaties in the field' and created the International Narcotics Control Board (INCB), center of illicit traffic...In an effort to carry out the principle of limiting the use of narcotic drugs to medical and scientific purposes, the Narcotics Convention of 1931 required noncontracting parties as well as parties to the Convention to furnish annual advance estimates of narcotics needed for these purposes. These estimates were examined …

Recent Decisions, Alan L. Marchisotto, W. H. Schwarzschild Iii, Mark M. Greisberger, Richard P. Granfield, Donald B. Cameron, Jr., Isaac H. Braddock, David A. Boillot

Vanderbilt Journal of Transnational Law

Recent Decisions

ADMIRALTY--COGSA--BILL OF LADING CARGO DESCRIPTION AND PACKER IDENTITY DETERMINE WHEN A CONTAINER IS A PACKAGE IN COGSA LIABILITY PROCEEDINGS

Alan L. Marchisotto

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ADMIRALTY--JURISDICTION OVER AVIATION TORT CLAIMS--ADMIRALTY JURISDICTION DOES NOT EXTEND TO AVIATION TORT CLAIMS IN THE ABSENCE OF A SIGNIFICANT RELATIONSHIP BETWEEN THE TORT AND TRADITIONAL MARITIME ACTIVITIES

W. H. Schwarzschild III

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ALIENS--ALIENS MAY MAINTAIN A CAUSE OF ACTION FOR PRIVATE EMPLOYMENT DISCRIMINATION UNDER 42 U.S.C. § 1981 (1970)

Mark M. Greisberger

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ANTITRUST--ARTICLE 86 OF THE EEC TREATY APPLIES TO CERTAIN CHANGES IN INTERNAL CORPORATE STRUCTURE

Richard P. Granfield

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CONSTITUTIONAL LAW--EXECUTIVE POWER--PRESIDENTIAL AUTHORITY …

Foreign Banking In The United States, James A. Johnson

Vanderbilt Journal of Transnational Law

Foreign banking in the United States is no longer a nominal activity. The assets of foreign bank agencies and branches tripled from 1965 to 1972, increasing to approximately 13 billion dollars. During this same time, assets of United States banks abroad rose to 75 billion dollars-an eight-fold increase.

Yet, despite this dramatic growth--which surely will continue--the United States remains the only major country in which foreign banking is not supervised at the national level. No valid constitutional or practical reasons exist to support state control. Although New York and California, which share the major portion of foreign banking at the …

Book Reviews, Oliver J. Lissitzyn, M. Ferid

Vanderbilt Journal of Transnational Law

THE INTERNATIONAL AIR TRANSPORT ASSOCIATION: A CASE STUDY OF A QUASI-GOVERNMENTAL ORGANIZATION

By Richard Y. Chuang

Leiden: A. W. Sijthoff, 1972. Pp. xviii, 185. $12.00.

reviewer: Oliver J. Lissitzyn

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AMERICAN-GERMAN PRIVATE INTERNATIONAL LAW

By Ulrich Drobnig

Dobbs Ferry, New York: Oceana Publications for Parker School of Foreign and Comparative Law, 1972. Pp. 510. $18.00.

(No. 4 Bilateral Studies in Private International Law,

Rev. ed. of M. Domke,

American. German Private Law Relations Cases 1945-1955 (1956) ).

reviewer: M. Ferid

The Changing Framework Of Concession Agreements And The Oil Industry, Journal Staff

Vanderbilt Journal of Transnational Law

This Symposium presents discussions of various aspects of the subject of the changing framework of concession agreements and the oil industry. Dr. Zuhayr Mikdashi analyzes policy considerations that influence developing nations seeking greater benefit from their resources, and presents several suggestions for increased cooperation among developing countries. Dr. Theodore Moran offers a critical evaluation of traditional United States investment policies and advocates a modified concession agreement aimed at minimizing friction between the parties. Mr. James Jensen concludes the Symposium with a comprehensive analysis of recent trends in company-state relations in the Middle East.

International Oil--Shortage, Cartel Or Emerging Resource Monopoly?, James T. Jensen

Vanderbilt Journal of Transnational Law

In the early days of industrialization in the United States, giant combines with great market power developed in a number of industries, such as oil, steel and railroads. Out of that era arose a body of domestic law and regulation that sought to define the limits within which those organizations could function in the economic life of the country. The Sherman and Clayton Acts formed the basis for antitrust law. Regulatory agencies such as the Federal Power Commission, the Interstate Commerce Commission and the Federal Trade Commission were formed to regulate the excesses of the private sector. We may now …

Judicial Deference In The Submerged Lands Cases, Jonathan I. Charney

Vanderbilt Journal of Transnational Law

When the Constitution established three branches of government, it did not create three hermetically sealed areas of responsibility. The executive, legislative and judicial branches are required to govern through a certain degree of accommodation. One area in which the need for accommodation between the judicial branch and the other two branches was recognized at an early stage is cases containing questions bearing on foreign relations.' Under the Constitution it appears that the conduct of the foreign relations is vested in the Executive with a secondary role for the Congress, but that the courts have no role to play in this …

Recent Treaties, James H. Bloem

Vanderbilt Journal of Transnational Law

To obtain information on the financial dealings of organized crime in Switzerland, the United States must show both probable cause and the absence of a reasonable possibility of conviction without the information. Thus, Switzerland has preserved its prudent and traditional requirement of secrecy with respect to transactions of those who utilize its financial institutions. Because the Treaty was drafted in two different legal environments, conflicts may rise under it. The limitation on use of any disclosed information to investigations or proceedings for which the information originally was granted does not coincide with the United States rule of evidence that allows …